Sweetwater Investors, LLC v. Sweetwater Apartments Loan, LLC et al
MEMORANDUM OPINION AND ORDER; that Defendants' motion for leave to file answers to the amended complaint out of time 62 is GRANTED. Defendants shall file exact duplicates of their answers on or before April 28, 2011. It is further ORDERED that Plaintiff's motion for summary judgment 60 is DENIED. Signed by Honorable William Keith Watkins on 4/25/2011. (Attachments: # 1 Civil Appeals Checklist)(jg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SWEETWATER INVESTORS, LLC,
LOAN, LLC, et al.,
CASE NO. 1:10-CV-223-WKW [WO]
MEMORANDUM OPINION AND ORDER
Before the court are Defendants’ motion for leave to file answers to the amended
complaint out of time (Doc. # 62), and Plaintiff’s motion for summary judgment (Doc. # 60).
The motions have been fully briefed.
(Docs. # 61, 68, 69, 71, 72.)
consideration of the arguments of counsel, the relevant law, and the record as a whole, the
court finds that the motion for leave to file answers out of time is due to be granted and that
the motion for summary judgment is due to be denied.
The following procedural history is relevant to the pending motions. Plaintiff
Sweetwater Investors, LLC (“Plaintiff”) commenced this diversity action on March 12, 2010,
alleging breach of contract and fraud arising out of a failed transaction for the purchase of
a loan. (Doc. # 39.) Defendants Sweetwater Apartments Loan, LLC, SIMA Corporation,
and James T. Knell did not serve an answer, but instead filed a motion to dismiss on April
30, 2010. (Doc. # 12.) On May 20, 2010, within the time permitted by Rule 15(a)(1)(B) of
the Federal Rules of Civil Procedure, Plaintiff filed an amended complaint. (Doc. # 18.) On
May 27, 2010, based upon the filing of the amended complaint, Defendants’ motion to
dismiss was denied as moot. (Doc. # 19.)
On June 3, 2010, Defendants filed a motion to dismiss the amended complaint. (Doc.
# 21.) Discovery was active during the pendency of this motion. On June 15, 2010, the
parties held a planning meeting and developed a proposed discovery plan, as required by
Federal Rule of Civil Procedure 26(f). (Doc. # 23.) Based upon that plan, on July 8, 2010,
the court entered a Uniform Scheduling Order, which set the trial for September 19, 2011,
and imposed discovery and other deadlines. (Docs. # 23-24.) Of particular relevance,
Defendant Knell was deposed on November 9, 2010. Two weeks later, on November 24,
2010, an order granting in part and denying in part the then-pending motion to dismiss was
entered. (Doc. # 39.) The electronic filing of this order started the clock for Defendants to
serve answers to the amended complaint. See Fed. R. Civ. P. 12(a)(4)(A). Defendants’
answers had to be served on or before December 8, 2011. Id.; (see also Doc. # 69, at 5.) The
answers were not filed by that date, but the litigation was far from stagnant.1
Proceedings continued, and the parties filed an amended Rule 26(f) discovery plan on
December 20, 2010. Based upon the parties’ filing and the requests made therein, an order
was entered extending certain deadlines in the Uniform Scheduling Order. (Docs. # 41, 43.)
Pursuant to that order, the trial remains September 19, 2011; the dispositive motion deadline
As represented by the parties and as indicated in a recent flurry of discovery motions, discovery
has been extensive and is ongoing.
is June 1, 2011; and the discovery deadline is July 22, 2011. (Doc. # 43.) On February 22,
2011, the parties mediated the case, albeit unsuccessfully. (Doc. # 41; see also Doc. # 68,
On Friday, March 11, 2011, Plaintiff filed a motion for summary judgment. (Doc.
# 60.) Plaintiff seeks summary judgment on the grounds that Defendants did not file answers
specifically controverting the allegations in the amended complaint and, thus, according to
Plaintiff, have admitted these allegations. See Fed. R. Civ. P. 8(b)(6). On March 14, 2011,
the next business day, Defendants filed a motion for leave to file answers to the amended
complaint, out of time, asserting that their failure to file timely answers was the result of
excusable neglect. (Doc. # 62.) As grounds for their motion, Defendants’ attorneys assert
that they “inadvertently failed to calendar the fourteen (14) day deadline due to an oversight
and w[ere] unaware that the deadline had passed until Plaintiff filed its Motion for Summary
Judgment.” (Doc. # 62 ¶ 6.) Defendants bring their motion, pursuant to Rule 6(b) of the
Federal Rules of Civil Procedure, because they failed to request an extension of time to file
an answer until after Defendants’ time to answer had expired. See Fed. R. Civ. P. 6(b)(1)(B).
Defendants’ Motion for Leave to File Answers Out of Time
Pursuant to Rule 6(b)(1)(B), a court “may, for good cause,” grant an extension of time
“upon [a] motion made after the expiration of the specified period,” in this case Rule 12, if
“the failure to act was the result of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). The
phrase “excusable neglect” appears in several federal procedural rules, including Rule
9006(b)(1) of the Federal Rules of Bankruptcy Procedure, as addressed in Pioneer Investment
Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380 (1993), and in Rule
60(b) of the Federal Rules of Civil Procedure, as addressed in Cheney v. Anchor Glass
Container Corp., 71 F.3d 848 (11th Cir. 1996). In Pioneer, the Supreme Court held that the
determination of “what sorts of neglect will be considered ‘excusable’ . . . is at bottom an
equitable one, taking account of all relevant circumstances surrounding the party’s
omission.” 507 U.S. at 395. These circumstances “include . . . the danger of prejudice to the
[non-movant], the length of the delay and its potential impact on judicial proceedings, the
reason for the delay, including whether it was within the reasonable control of the movant,
and whether the movant acted in good faith.” Id. In Cheney, the Eleventh Circuit noted that
in Pioneer, “the Supreme Court accorded primary importance to the absence of prejudice to
the nonmoving party and to the interest of efficient judicial administration in determining
whether the district court had abused its discretion.” 71 F.3d at 750. Applying the Pioneer
factors, the court held that under Rule 60(b), an attorney’s negligent failure to comply with
a filing deadline was excusable neglect. Id.
In their briefs, the parties analyze the Pioneer factors, but not surprisingly the
opposing sides reach different outcomes.2 Envisioning no reason why the rationale of
Pioneer would not apply equally to Rule 6(b), the court also will conduct the excusable
neglect analysis with Pioneer as the guide. See Fisher v. Office of State Attorney 13th
Judicial Circuit Fla., 162 Fed. App’x 937, 940 (11th Cir. 2006) (applying the Pioneer factors
to determine whether Rule 6(b)’s excusable neglect standard had been met); see also
Pioneer, 507 U.S. at 391 (observing that Fed. R. Bankr. P. 9006(b)(1) “was patterned after
Rule 6(b)”); Pincay v. Andrews, 389 F.3d 853, 855 (9th Cir. 2004) (explaining that in
Pioneer, “[t]he Court . . . reviewed various contexts in which the phrase [“excusable
neglect”] appeared in the federal rules of procedure and made it clear the same test applies
in all those contexts”).
The first Pioneer factor requires consideration of the danger of prejudice to the nonmovant. 507 U.S. at 395. Plaintiff argues that permitting Defendants to file their answers
will cause it “great prejudice” because in their answers, Defendants deny that Mr. Knell was
acting as the “actual, implied, or apparent agent or employee” of the corporate Defendants
As stated, Rule 6(b)(1) also embodies a “good cause” requirement. The practical difference
between the good cause and excusable neglect requirements is difficult to discern, and the briefs give
scant attention to this issue. (See Doc. # 68, at 3 (“[E]xactly what constitutes good cause [in the context
of a Rule 6(b)(1)(B) motion] has seen little attention.”).) Indeed, in another context, “good cause” has
been equated with “excusable neglect.” Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1312 (3d Cir.
1995). The court leaves for another day the distinction between the “good cause” standard and the
“excusable neglect” standard, as set out in Rule 6(b)(1). No argument has been made or authority cited
that would foreclose a finding of good cause on this record.
at all times material to this litigation. (Doc. # 18 (Am. Compl. ¶ 4); Ex. to Doc. # 62 (Knell’s
Answer ¶ 4); Doc. # 68, at 4.) Plaintiff contends that it had “no way . . . to anticipate this
denial” because Mr. Knell was deposed on November 9, 2010, in his capacity as the
corporate Defendants’ Rule 30(b)(6) representative. (Doc. # 68, at 4.) Plaintiff also asserts
that Mr. Knell was “the primary person [with whom] the Plaintiff’s members and
representatives communicated” regarding the transaction at issue. (Doc. # 68, at 4.) Plaintiff
argues that, “[i]f Defendants are allowed to file their Proposed Answers[,] Plaintiff will have
to re-address the issues of ownership and agency . . . .” (Doc. # 68, at 4-5.) The gist of the
remainder of Plaintiff’s argument is that the denials in the answers and some of the
affirmative defenses contradict Mr. Knell’s deposition testimony. (Doc. # 68, at 4-5.)
Defendants, on the other hand, assert that whether Mr. Knell was acting as an agent
for the corporate Defendants in his communications with Plaintiff and its members was
“thoroughly explored” during Mr. Knell’s deposition, and that the denials in the answers are
consistent with Mr. Knell’s deposition testimony. (Doc. # 69, at 8-12.) They further contend
that through the “extensive discovery” phase, Plaintiff has become “well aware that [ ]
Defendants deny the claims made in the Amended Complaint.”
(Doc. # 62 ¶ 19.)
Defendants have the better argument.
First, Plaintiff’s argument impermissibly extends the parameters of what it means
when an individual is designated as a Rule 30(b)(6) representative. By offering Mr. Knell
as their 30(b)(6) representative, the corporate Defendants represented that Mr. Knell would
testify “on [the corporate Defendants’] behalf” and “about information known or reasonably
available” to the corporate Defendants. Fed. R. Civ. P. 30(b)(6). Rule 30(b)(6) did not
require the corporate Defendants to concede that, for all purposes of this litigation, Mr. Knell
acted for the corporation within an agency authority, whether actual, implied or apparent.
Relatedly, in the deposition excerpts relied upon by Plaintiff, Mr. Knell did not
concede, as Plaintiff suggests, that he “acted as the agent of or on behalf of” the corporate
Defendants “during the times relevant to the allegations in the Amended Complaint.” (Doc.
# 68, at 4 (citing Knell Dep. at 7-8, 210).) Rather, in those excerpts, Mr. Knell merely
confirmed that he was testifying as the corporate Defendants’ 30(b)(6) representative, that
he was the owner of one of the corporate Defendants, and that he was “one of two general
partners” of the other corporate Defendant. (Knell Dep. 7-8, 210.) Those facts are not
denied in the answers. Indeed, the answers admit that Mr. Knell is SIMA’s chairman. (Ex.
to Doc. # 62 (Answers ¶ 4).) Plaintiff cites no authority, and the court is aware of none, that
title alone is determinative of an actual, implied or apparent agency relationship. See
generally McLemore v. Hyundai Motor Mfg. Ala., LLC, 7 So. 3d 318, 328-29 (Ala. 2008)
(discussing actual, implied and apparent agency); Wallace v. Frontier Bank, N.A., 903 So.
2d 792, 801 (Ala. 2004) (“[A]gency is a question of fact, and agency may not be
presumed.”). As to the remainder of paragraph 4 of the amended complaint, it contains legal
conclusions of agency to which no answer is required by Defendants. (See Doc. # 18 (Am.
Compl. ¶ 4) (Mr. Knell “was serving as the actual, implied, or apparent agent or employee
of” the corporate Defendants, was acting in the “course of and scope of his authority,” and
is “legally responsible for harm thereby caused to Plaintiff.).)
Second, although the answers may have provided the first succinct formulation of
Defendants’ theories, Plaintiff’s contention that it has been blind-sided by the answers is not
supported by the record. For example, Plaintiff claims prejudice by Defendants’ denial of
paragraph 16 of the amended complaint, which reads “Defendants have failed or refused to
transfer the Loan and the Loan File to Plaintiff despite Plaintiff’s performance under the
Agreement and demand for said transfer.” (Doc. # 18 (Am. Compl. ¶ 16); see, e.g., Doc.
# 62-1 (Def. Sweetwater’s Answer ¶ 16, denying ¶ 16 of Am. Compl.).) However, as
discussed in a prior order, the references in the amended complaint to “Loan Documents,”
“Loan File,” and “documents associated with the Loan” create an ambiguity as to what
documents Plaintiff alleges it was entitled to receive under the contract. (Doc. # 39,
at 14-15.) Without clear delineation as to what the “Loan File” encompasses, as alleged in
paragraph 16 of the Amended Complaint, a denial is unsurprising. Additionally, in the
testimony cited by Plaintiff as contradicting Defendants’ denial, Mr. Knell was asked,
somewhat rhetorically, whether it was this lawsuit that had motivated Mr. Knell “last week”
to deliver the “guarantees” at issue to Plaintiff. (Knell Dep. 162.) Mr. Knell’s testimony
does not conflict with any position taken by Defendants that presently any contractual
obligations by Defendant Sweetwater Apartments Loan, LLC, pertaining to the transfer of
documents have been fulfilled.3
As an additional example, Plaintiff asserts that it was surprised to its prejudice by
Defendants’ denial of the amended complaint’s allegation that Defendants “had the authority
to transfer the Loan and Loan File to Plaintiff.” (Doc. # 18 (Am. Compl. ¶ 29).) This
argument also is not convincing. At the motion to dismiss stage, Defendants clearly asserted
their position as to what documents they contended Plaintiff (as the buyer) was entitled to
receive from the seller (Defendant Sweetwater Apartments Loan, LLC) under the contract
and their position that the seller did not have authorization to provide any other documents
previously received from Regions. (See Doc. # 22, at 9-10.)
Third, assuming without deciding that some of the denials in the answers are in
conflict with Mr. Knell’s deposition testimony, timely served answers would not have alerted
Plaintiff of the conflict on the date of Mr. Knell’s deposition. When Mr. Knell’s deposition
was taken on November 9, 2010, Defendants’ motion to dismiss the amended complaint was
pending and, thus, Defendants’ answers were not yet due.4 See Fed. R. Civ. P. 12(a)(4)(A)
(providing that an answer “must be served within 14 days after notice of the court’s action”
on a Rule 12 motion). Hence, even if Defendants had timely served their answers, Plaintiff
No opinion is expressed as to the merits of the claim disputes.
On November 9, 2010, Plaintiff was aware that the fourteen-day time period for service of
Defendants’ answers had not yet commenced. (See Knell Dep. 208, in which counsel for Plaintiff says,
“I need to explore that [issue] a little bit just because I know we’re in an odd situation where the Judge
hasn’t ruled on your motion to dismiss; therefore, you haven’t filed an answer.”) (Ex. C to Doc. # 61).)
would not have known on November 9, 2010, which allegations in the amended complaint
were disputed by the answers or which affirmative defenses would be pleaded.
Overall, based upon careful consideration of Plaintiff’s arguments, the assertions of
prejudice lack force. The first Pioneer factor weighs heavily in Defendants’ favor.
Length of the Delay and Its Potential Impact on the Judicial Proceedings
The second Pioneer factor requires consideration of the “length of the delay and its
potential impact on judicial proceedings.” 507 U.S. at 395. The date the answer was due
marks the starting point for measuring the length of the delay. Approximately three months
passed between the date the answer was due (December 8, 2010) and the date Defendants
filed their motion for leave to file their answers out of time (March 14, 2011). To be sure,
the time period that transpired prior to Defendants recognizing their error is longer than the
six-day delay in Cheney, see 71 F.3d at 849, and the twenty-day delay in Pioneer, 507 U.S.
at 384. However, similar to the scenario in Cheney, during the delay, the parties actively and
vigorously engaged in discovery and settlement discussions. See 71 F.3d at 850. The parties
even mediated the case during this period of time. This is not, therefore, a case that was
stagnant because of the delay.
Plaintiff asserts, however, that the delay places it in a “dilemma” of having to “choose
whether to risk being able to adequately complete discovery in less than four months or ask
this Court to postpone the proceedings . . . .” (Doc. # 68, at 8.) In light of the discussion in
the preceding section, Plaintiff’s assertion that the answers have changed the course of this
litigation, thereby requiring extensive additional discovery, is not supported by the record.
The court is not convinced, at this point, that the three-month delay will necessitate a
continuance of the September 19, 2011 trial date, or that allowing Defendants to file untimely
answers will otherwise have an adverse effect on the efficient judicial administration of this
The Reason for the Delay
The third Pioneer factor focuses on the reason for the delay. See 507 U.S. at 395.
Defendants’ attorneys assert that they “inadvertently failed to calendar the fourteen (14) day
deadline due to an oversight and w[ere] unaware that the deadline had passed until Plaintiff
filed its Motion for Summary Judgment.” (Doc. # 62 ¶ 6.) Plaintiff argues that because the
“undisputed cause of the delay was inadvertence,” no discussion is required, “other than to
point out that [this reason] was a matter wholly within Defendants’ control,” and that Pioneer
forewarned that “‘inadvertence . . . do[es] not usually constitute excusable neglect.’” (Doc.
# 68, at 7 (quoting Pioneer, 507 U.S. at 392).)
Plaintiff correctly quotes Pioneer, and that quotation admittedly favors Plaintiff to the
extent that the inadvertence here is of the usual kind. However, Plaintiff did not quote the
whole passage, which also contains language that favors Defendants:
Although inadvertence, ignorance of the rules, or mistakes construing the rules
do not usually constitute “excusable” neglect, it is clear that “excusable
neglect” under [Federal Rule of Civil Procedure] Rule 6(b) is a somewhat
“elastic concept” and is not limited strictly to omissions caused by
circumstances beyond the control of the movant.
Pioneer, 507 U.S. at 392 (internal footnotes omitted).5 The Pioneer Court also observed that
“there is no indication that anything other than the commonly accepted meaning of the phrase
[“excusable neglect”] was intended by [Rule 6(b)’s] drafters.” Id. at 391. As explained in
Pioneer, “the ordinary meaning of ‘neglect’ is ‘to give little attention or respect’ to a matter,
or . . . ‘to leave undone or unattended to esp[ecially] through carelessness.’” Id. at 388
(quoting Webster’s Ninth New Collegiate Dictionary 791 (1983)). “The word therefore
encompasses both simple, faultless omissions to act and, more commonly, omissions caused
by carelessness.” Id.; see also Raymond v. Int’l Bus. Machs. Corp., 148 F.3d 63, 66 (2d Cir.
1998) (“[M]ere inadvertence, without more, can in some circumstances be enough to
constitute ‘excusable neglect’ justifying relief under Rule 6(b)(2)[,]” now Rule(b)(1)(B)].”
(citing Pioneer, 507 U.S. at 391-92)).
Here, Defendants’ attorneys assert that they missed the deadline for serving their
answers based upon a failure to place the deadline on a calendar. There is no dispute that
avoidance of this error was within the control of Defendants’ attorneys. Additionally,
Defendants’ assertion that the cause of the delay was due to inadvertence is not challenged
by Plaintiff. While Plaintiff contends otherwise, based upon the foregoing authority, these
circumstances do not make the neglect inexcusable. To the contrary, Eleventh Circuit
decisions decided in the post-Pioneer world support a finding that the reason for the delay
weighs in Defendants’ favor. See Walter v. Blue Cross & Blue Shield United of Wis., 181
The Ninth Circuit has described this passage as “having a little something for everyone.”
Pincay, 389 F.3d at 857.
F.3d 1198, 1202 (11th Cir. 1999) (finding excusable neglect and that the reason for the delay
– “the failure of a former secretary of [the movant’s] attorney to record the applicable
deadline” – was “the type of ‘innocent oversight’ involved in Cheney” (citing Cheney, 71
F.3d at 850)); Advanced Estimating Sys., Inc. v. Riney, 130 F.3d 996, 999 (11th Cir. 1997)
(explaining that when there is a “mistake of fact,” such in Cheney, which was a
“miscommunication case or clerical-error case,” the neglect can be excusable).
The fourth Pioneer factor examines “whether the movant acted in good faith.” 507
U.S. at 395. Plaintiff argues that defense counsel’s conduct during discovery and the content
of the proposed answers are indicative of an absence of good faith.6 (Doc. # 68, at 8-12.)
Defendants “strenuously den[y]” the accusations of unprofessional conduct, but contend that,
under the Eleventh Circuit’s opinion in Cheney, the good faith requirement “only relates to
the ‘good faith’ in missing the deadline on that pleading.” (Doc. # 69, at 14.)
In Cheney, notwithstanding that counsel’s “failure to comply with the filing deadline
[was] attributable to negligence,” the Eleventh Circuit found “no indication that counsel
deliberately disregarded [the local rule’s filing deadline],” and there was no argument that
counsel “intended to delay the trial, or that he sought an advantage by filing late.” 71 F.3d
Plaintiff contends that the proposed answers “show that [Defendants] have failed to act in good
faith” because the answers “contain multiple denials of allegations previously conceded by” Mr. Knell.
(Doc. # 68, at 12.) This argument was rejected above, and no further discussion is required here. In
short, Plaintiff has not demonstrated that the content of the answers is indicative of an absence of good
at 850. “The nonfiling was simply an innocent oversight by counsel.” Id. Accordingly, the
court found “no bad faith that would warrant forfeiture of [the plaintiff’s] right to a full trial
of his cause.” 7 Id.
Cheney lends support to Defendants’ argument that the motivation behind the tardy
filing is key in examining Pioneer’s good faith requirement. Cheney focused on whether the
deadline was purposefully snubbed to delay the trial or to obtain a litigation advantage.8 See
71 F.3d at 850.
Here, there is no suggestion that counsel for Defendants purposefully ignored the
deadline for serving answers, as established in Fed. R. Civ. P. 12(a)(4)(A), or purposefully
refused to serve an answer to the amended complaint. In fact, Plaintiff does not contend that
the missed deadline was the result of conduct any more culpable than inadvertence. There
also is an indication that Defendants’ attorneys acted in good faith to comply with the missed
deadline by promptly moving for leave to file their answers out of time once they realized
the error. Moreover, while the attorneys for Defendants neglected a deadline for a period of
time, no argument has been made that they neglected this case altogether. To the contrary,
Pioneer phrased the fourth factor as “whether the movant acted in good faith.” 507 U.S. at 395.
In Cheney, the Eleventh Circuit discussed this factor in terms of whether there was “bad faith” or a “lack
of bad faith on the part” of the movant. 71 F.3d at 850.
On the other hand, the court does not believe that Cheney requires tunnel vision when other
circumstances of the litigation clearly demonstrate the absence of good faith on the part of the movant or
where an absence of good faith in missing the deadline can be inferred from those other circumstances.
Because such other circumstances are not present in this case, the court need not decide the issue. The
court has considered carefully Plaintiff’s arguments, but does not find that those arguments tilt this factor
in its favor.
as stated elsewhere in this opinion, the attorneys on both sides have been very busy pursuing
discovery and settlement negotiations. On this record, the court finds that Pioneer’s good
faith factor weighs in Defendants’ favor.
“[A]ll relevant circumstances surrounding” counsel for Defendants’ missed deadline
have been considered. Pioneer, 507 U.S. at 395. The absence of prejudice to Plaintiff and
the minimal negative impact on efficient judicial administration, combined with the reason
for the delay and good faith of counsel, weigh in favor of a finding of excusable neglect
under Rule 6(b)(1)(B). Accordingly, Defendants’ motion for leave to file answers to the
amended complaint out of time is due to be granted.
With that said, the court is cognizant that Plaintiff’s notice of the answers’ denials and
defenses has been cut short by some three months based upon Defendants’ tardiness. There
are still, however, three months remaining until the July 22 discovery deadline. To the extent
that Plaintiff deems this time period insufficient to conclude discovery, careful consideration
will be given to any motion requesting an extension of that deadline.
It must also be noted that a review of the record suggests a measure of gamesmanship
on the part of both Plaintiff and Defendants with respect to discovery. Henceforth, the
parties are forewarned that full cooperation in the remaining discovery process, and nothing
less, is expected of them, and delays in scheduling depositions or in responding to discovery
requests are expected to be minimal, preferably nonexistent. While the court is available to
resolve discovery disputes and, in fact, is in the process of doing so now (see Docs. 46-48,
50-56, 59), good faith efforts to resolve disputes should be taken before resort to the court.
Plaintiff’s Motion for Summary Judgment
Plaintiff contends that it is entitled to summary judgment because Defendants did not
answer the amended complaint. (Doc. # 61, at 7-8.) Plaintiff’s argument rests on Rule
8(b)(6), which provides that “[a]n allegation – other than one relating to the amount of
damages – is admitted if a responsive pleading is required and the allegation is not denied.”
Fed. R. Civ. P. 8(b)(6). Because Defendants will be permitted to file their answers out of
time, Plaintiff’s foundation for summary judgment crumbles. Accordingly, Plaintiff’s motion
for summary judgment is due to be denied.
Based on the foregoing, it is ORDERED that Defendants’ motion for leave to file
answers to the amended complaint out of time (Doc. # 62) is GRANTED. Defendants shall
file exact duplicates of their answers on or before April 28, 2011.
It is further ORDERED that Plaintiff’s motion for summary judgment (Doc. # 60) is
DONE this 25th day of April, 2011.
/s/ W. Keith Watkins
UNITED STATES DISTRICT JUDGE
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